Lopsided ‘bipartisanship’ in judges’ marriage mandates

GavelWith a large number of federal judges rushing to rule that states must redefine marriage to include same-sex couples over the last year has come a claim by advocates that the legal theory enjoys bipartisan support. Of course, federal judges are not elected with formal party identification, so what this means is that judges appointed by presidents of both political parties support same-sex marriage. This is technically true, since judges appointed by both Republicans and Democrats have ruled that states must change their marriage laws.

But looking more closely at the cases presents a different picture. Of the 39 judges who have ruled in these cases since the U.S. Supreme Court struck down the Defense of Marriage Act in the summer of 2013, 33 have ruled in favor of redefinition and six against.

Of the six, all but one (from Puerto Rico, appointed by President Jimmy Carter) were appointed by Republicans.

Of the 33 favoring redefining marriage, 28 were appointed by Democrats. Fourteen were appointed by President Barack Obama, twelve by President Bill Clinton and two by President Jimmy Carter. Of the five Republicans favoring same-sex marriage, three were appointed by President George H.W. Bush, two by President George W. Bush and one by President Ronald Reagan.

What’s immediately striking about this is how many judges appointed by Democrats heard cases: 29 of 39. If my back-of-the-envelope calculations are right, plaintiffs challenging a marriage law in federal court have a 28 in 29 chance of winning if the judge on their case is a Democrat. (Perhaps 97 percent.) If the judge is a Republican, there is a 50 percent chance.

So, while there’s definitely support for the position that courts should create a national definition of marriage among judges appointed by Republicans and Democrats, being appointed by a Republican president is associated with a judge’s being open to allowing a state to retain its understanding of marriage as the as the union of a husband and wife and being appointed with a Democrat is associated with almost no support for that proposition.

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Utah Right On Crime: A conversation with Texas Right On Crime architects

We have the perfect primer for anyone looking to understand Utah’s criminal justice reform efforts and the Right On Crime initiative.

Sutherland’s Derek Monson had the chance to sit down with Jerry Madden, the 20-year Texas state legislator who spearheaded criminal justice reform in his state, and Mark Levin, policy director for Right on Crime, for a discussion about criminal justice reform efforts in Utah.

Check out their conversation below:

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Trigger warnings and microaggressions — Sutherland Soapbox, 1/13/15

silenceThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

There’s a couple of interesting trends that have been brewing for a while that I’d like to talk about today because they might be symptoms of a larger issue. One is the rise of trigger warnings.

Trigger warnings have their origin in the completely rational and noble effort to protect the mentally ill or victims of violent crimes, such as child abuse or rape, from experiencing things like flashbacks or post-traumatic stress disorder. The warnings are given before exposing the consumer to anything that might “trigger” those painful memories. That’s great. There’s no reason to needlessly put the vulnerable through that trauma.

Unfortunately, there are some, including many on college campuses, who have taken this concept to the extreme. At one time, Oberlin College’s list included “racism, classism, sexism, heterosexism, cissexism, ableism, and other issues of privilege and oppression.” To their credit, the administration changed the policy after some of Oberlin’s faculty voiced their displeasure. A New Republic article reported at the time,

In the faculty’s eyes, trigger warnings threaten not just academic freedom but the intrinsic nature of the liberal arts educational model. “We need to … challenge students, to conduct open inquiry in classrooms, to make students feel uncomfortable,” explained [Oberlin professor] Marc Blecher. “Making students feel uncomfortable is at the core of liberal arts education.”

A second trend gaining steam is the rise of the concept of microaggressions. The idea is that degrading stereotypes related to things like gender, race, religion and ethnicity often occur in subtle ways. Microaggressions are the seemingly innocuous comments or gestures the offending individual commits but is almost always unaware he or she has committed. It could be something like a male holding a door open for a female. Continue reading

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School Trek: The Next Generation

The Country School, by Winslow Homer

The Country School, by Winslow Homer

For those who care about improving public education for Utah families and children, National Affairs recently published an intriguing essay about Education Savings Accounts (ESAs) titled “The Next Step in School Choice.”

This essay, referencing Milton and Rose Friedman, captures well the realities of human nature, psychology and behavior that the public education system has generally failed to grasp (and that therefore plague that system):

People can either spend their own money or someone else’s money, and they can either spend it on themselves or on someone else. The Friedmans argued that people generally have a stronger incentive to economize when spending their own money than when spending someone else’s money. Likewise, people generally have a stronger incentive to maximize value when spending money on themselves than when spending on someone else.

The lack of incentive to reduce costs or maximize value is particularly acute when the spender does not know whose money he is spending or on whom he is spending it. For instance, a person is more likely to purchase a lavish dinner with a corporate expense account than when a close friend is paying. Likewise, someone is less likely to maximize value when buying a gift for the office holiday gift exchange than when buying a gift for a significant other. In the latter scenario, the spender’s knowledge of what would provide the greatest value is also considerably higher when he knows the recipient well.

Public-school officials, like all government bureaucrats, primarily engage in the worst kind of spending: They spend other people’s money on children who are not their own. As competent and well-meaning as they may be, their incentives to economize and maximize value are simply not as strong as those of parents spending their own money on their own children.

Recognizing and addressing this human reality is one of the major purposes of ESAs, which deposit taxpayer dollars into savings accounts for parents to use to provide for their child’s education – through home school, public school, private school, private tutors or some combination of these, depending on the child’s need – and allowing parents to save any leftover money to use for their child’s college education. In short, ESAs allow a child and those closest to a child to tailor that child’s path for learning and education according to their personal, individual needs and give parents an incentive to seek out the greatest value for the least cost, so they can save toward the significant costs of higher education.

Some in the past have opposed ESAs in Utah because they don’t think an ESA system is workable in practice. But in reality, two states – Arizona and Florida – have established working ESA systems. In the face of this evidence, to argue it can’t be done in Utah is to argue that Utah’s education leaders don’t have the competence to handle what other states are already doing. And that argument does not seem based in reason or reality.

Hopefully, Utah policymakers will look past the fear-based arguments of special interests in public education and support legislation to create ESAs. Children in Utah deserve the freedom and joy in learning that Education Savings Accounts can bring.

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Reusable bags are great, but don’t ban plastic

Blue_reusable_shopping_bagI’m a conservative who loves reusable bags.

When I lived in Austria 20+ years ago, I learned quickly that if you didn’t bring your own bag to the corner grocery store, you’d have to carry your purchases home in your pockets or purse. It was odd for an American who was used to free plastic bags at every store, but really, it was not that hard to adjust.

(What was strange was seeing people use their bags like a shopping basket: putting their items in the bag while shopping, then taking them out at the cash register to have them rung up. To an American, that seemed like a good way to get accused of shoplifting.)

Anyway, when reusable bags started making their way into American culture, it seemed perfectly logical to me. Reusing items that you already own and avoiding waste is certainly conservative.

A ban on plastic bags is not.

Why should government mandate that stores cannot provide free plastic bags? It’s another nanny state law.

In fact, enough petition-signers in California have objected to the statewide plastic-bag ban, which was passed last year, that a referendum will likely be forced on the issue in 2016.

I don’t like seeing plastic bags caught in trees or blowing across the street more than anyone else does, but let’s blame litterbugs, not the bags themselves. Also, plenty of people reuse those “single-use” plastic bags as trash can liners.

Stores can set their own rules: no bags, one free bag, 5-cent rebate for bringing your own bag … let the retailer decide. And people can make their own decisions about their shopping bags. This is not the government’s job.

There’s also been some press about bacterial contamination of reusable bags. That’s a legitimate concern – but germs are on EVERYTHING. Wash your hands, and wash your cloth bags as needed. We should worry less about our (possibly contaminated!) cloth bags and worry more about the basic hygiene we learned as children.

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AG Reyes takes oath after ‘whirlwind year’

photoOn Monday, Jan. 5, Sean Reyes took the Attorney General oath of the office, just as he did when he was appointed by Governor Herbert to fill the vacancy a year ago. In so doing, he continues as Utah’s chief law enforcement officer and leader of the largest law firm in the state.

As a former administrator of one of Utah’s fine, large, private law firms, I am somewhat familiar with the challenges associated with the practical and organizational dimensions of AG Reyes’ responsibilities. Leading and coordinating the efforts of any large group is difficult. Being accountable to do so in the “glass house” of service in the public sector can be daunting, even when things are going well. To observe that things were not going well when Reyes stepped into the role 12 months ago would be an understatement.

In his inaugural address, Attorney General Reyes described those circumstances.

A year ago we were faced with serious distrust by the public in our office, a demoralized workforce, dissatisfied clients, a lack of infrastructure, we lacked many policies, consistency, resources, vision – and we were tasked with handling cases of great import to the state and nation as well as investigations internally and externally into our office.  And that was just on the first day.

Further noting,

… client satisfaction hovered somewhere between dismal and really dismal (I like to say galactically dismal).

Describing efforts since that time, he said,

In this whirlwind year, … we as an office have focused our attention on returning to being a law office and not a political one, focused on legal excellence, professionalism, and our duty to defend the citizens, businesses and laws of Utah.

Underscored by several musical performances representing his diverse family lineage, Reyes acknowledged the influence of his wife, Saysha, their six children, and his parents and ancestors.

Readers of the transcript of his remarks will learn how the state’s 21st attorney general feels he has been prepared for the rigors of the office by personal and professional experiences and by his cosmopolitan heritage – from the Philippines, Spain, Japan and Hawaii. A foundation of strength that will be necessary to surmount current high hurdles and the high bar he has set for himself and his colleagues.

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Regrettable words and the ethics of tale-bearing

Germany_Sindelfingen_GossipsRecently, the news reported some comments from a well-known, and by all accounts, generous and philanthropic individual in the state, of an unfortunate and ad hominem nature about a prominent politician. Such comments are, of course, always regrettable.

What could explain them? We have to admit that we don’t know. It could be a regrettable lapse such as all of us make—and hope will not be widely reported or remembered. It might be that the remark was misreported and, based on context or some other factor, is not as uncivil as it appeared in the report. Perhaps the speaker was experiencing some lapse, such as might be caused by a medical condition. Perhaps it accurately reflects an unkind feeling, though one hopes not. At bottom, it’s difficult to understand, much less explain.

It should be said that the story reports that there was no response from the public official impugned, which speaks well of him.

The episode raises other questions as well. For instance, what is the ethical responsibility of a person who is told by one person an unflattering characterization of another? This is a familiar scenario — the teenager, for instance, who stirs contention: “Do you know what she said about you?” What about others who relay the comment?

Also, what is the responsibility of those who seek such comments? Are they merely reporting news? Is it part of the public’s “right to know” that an admirable public person thinks badly of another? Is there yet another person in the background spurring on the expression or reporting of the comments for their own political or other purposes? What is their responsibility?

Of course, anyone active in public life runs the risk of being poorly thought of by others. Ideally, disagreements about policy choices will be expressed as such rather than as ad hominem statements. Those who are admired ought to be particularly careful not to add to the coarseness of political debate.

That does not, however, absolve the listeners, relayers and instigators of their responsibility as well.

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Medicaid expansion: The moral question — Sutherland Soapbox, 1/6/15

Photo: Caremate

Photo: Caremate

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

As things stand today, the 2015 Legislative Session is just three weeks away. And while many important issues will be addressed, one that is likely to have more significance and long-term impact than most is the issue of Medicaid expansion.

The question of if, when, and how to expand Utah’s Medicaid program is important on multiple levels. But today I want to focus on the moral level.

The question of Medicaid expansion is important on a moral level because we are talking about the moral imperative we have as human beings to help our neighbors in need gain access to basic health care services. Simply stated, our moral impulses and reasoning will not allow us to sit by and let people suffer needlessly, and history has shown that if civil society and the marketplace are unwilling or unable to step up to provide basic health care for everyone who needs it, the government will. Hence we have one of Utah’s more conservative governors in recent memory proposing to expand Utah’s Medicaid program to the fullest extent under the rules of Obamacare, in the form of the Healthy Utah plan.

In fairness, some supporters of Healthy Utah object to its being called a “full Medicaid expansion” under Obamacare. But when you propose to cover the full Medicaid expansion population with coverage that is comparable in scope to traditional Medicaid, and a main purpose of doing so is to qualify for more generous federal funding offered for full Medicaid expansion, then the simple fact is that you have proposed a full Medicaid expansion plan.

In any case, the supporters of Healthy Utah regularly invoke a moral argument in favor of Medicaid expansion: namely, that we cannot sit by and do nothing to help the 60,000-plus uninsured Utahns that Obamacare has let fall through the cracks. Now that is an important moral consideration, but an incomplete one.  Continue reading

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Health care and a history of misleading the public

President Lyndon B. Johnson

President Lyndon B. Johnson

The government has a long history of misleading the public in order to pass legislation it wants.

For instance, in the 1960s President Lyndon Johnson pressed his allies in Congress to suppress the true cost of his big health care legislation, Medicare and Medicaid, in order to garner enough support to get it passed.

According to taped conversations, President Johnson, speaking with Senator Ted Kennedy in 1962, describes how suppressing costs was vital to passing his bill, because if voters and their representatives in Congress knew how much the bill would actually cost over the long term they would be outraged,

A health program yesterday runs 300 million, but the fools had to go to projecting it down the road five or six years. And when you project the first year, it runs 900 million. Now I don’t know whether I would approve 900 million the second year or not. I might approve 450 or 500. But the first thing Dick Russell comes running in, saying my God, you’ve got a billion dollar program for next year on health, therefore I’m against any of it now. Do you follow me?

Not surprisingly, the projections the government made were wildly off. In 1967 the House Ways and Means Committee predicted Medicare would cost $12 billion in 1990. The actual cost was $98 billion.

Today, we find that something similar to LBJ’s dishonesty has happened with President Obama’s Affordable Care Act. For years the president repeated the refrain, “If you like your plan, you can keep your plan.” Once it became clear that wasn’t true, the president apologized to the millions of Americans who lost their insurance plans because of Obamacare.

Click here to read the rest of this post at Utah Citizen Network.

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Religion, democracy and the family – Sutherland Soapbox, 12/30/14

"Going to Church," by William H. Johnson, Smithsonian American Art Museum.

“Going to Church,” by William H. Johnson, Smithsonian American Art Museum.

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

Reflecting recently on a discussion some years ago with an associate from Asia who had come to the United States to study capitalism and democracy, Harvard business professor and internationally respected author Clayton Christensen was struck by his colleague’s observations about religion, democracy and free markets. Of particular note was the fundamental significance of honesty, commitment and respect for other people’s property – that “their right to freedom is as valuable as yours.” In other words, that capitalism requires willingness voluntarily to follow the rules. (“Clayton Christensen on Business and Religion,” April 23, 2012)

Quoting Dr. Christensen,

Some time ago I had a conversation with a Marxist economist from China. He was coming to the end of a Fulbright Fellowship here in Boston. I asked him if he had learned anything that was surprising or unexpected and without any hesitation he said, “Yeah. I had no idea how critical religion is to the functioning of democracy. ‘The reason why democracy works,’ he said, ‘is not because the government was designed to oversee what everybody does, but rather democracy works because most people most of the time voluntarily choose to obey the law. And in your past, most Americans attended a church or synagogue every week and they were taught there by people who they respected.’ My friend went on to say that Americans follow these rules because they had come to believe that they weren’t just accountable to society; they were accountable to God. My Chinese friend heightened a vague but nagging concern I’ve harbored inside that as religion loses its influence over the lives of Americans, what will happen to our democracy? Where are the institutions that are going to teach the next generation of Americans that they, too, need to voluntarily choose to obey the laws? Because if you take away religion, you can’t hire enough police. (“Clay Christensen on Religious Freedom,” March 5, 2014)

Continue reading

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See you next year!

crecheSutherland Daily is taking a Christmas-and-New-Year’s break. We’ll be back to offer more thought-provoking blog posts on Jan. 5.

Thanks for reading and have a Merry Christmas!

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Peace, truth, freedom and functional culture — Sutherland Soapbox, 12/23/14

TruthThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

Some years ago, an influential organizational leader observed that the measure of peace experienced by an individual is a manifestation of the degree of congruity between not only a person’s values and their behavior, but also the extent to which the person’s values conform to truth. This is a compelling idea and one I’ve come to recognize as applying also to groups of people, indeed to all functional human cultures.

The interrelationship of truth and freedom seems also to be essential – as proclaimed by The Prince of Peace, whose birth Christendom now celebrates: “…ye shall know the truth and the truth shall make you free.” (John 8:32) “Free from what?” we might ask. Free from distorted perceptions and erroneous thinking and thus free from the bonds of ignorance and from the errors and wasted opportunities ignorance produces.

Meaningful consideration of these concepts is incomplete without some definition of “truth.” I regard truth as immutable; as functioning independent of our awareness of it and irrespective of whether we agree or concur with it. As such, we have the privilege and responsibility to discover and choose to live consistent with, or to disregard, the truth. What is not available to us is the amending or redefining of it.

In 1978, Neal Maxwell addressed many of these fundamentals in a remarkable message presented to members of the Rotary Club International. A former professor of political science and later executive vice-president at the University of Utah and at the time a member of the presidency of the Seventy of the Church of Jesus Christ of Latter-day Saints, Elder Maxwell’s remarks are stunningly relevant today even though he shared them nearly 37 years ago. Continue reading

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Give your kids the present they wish for the most

ikeavidIKEA has put together a moving video that should touch all parents, and probably will sting most of us. In the video, they asked some kids to write two letters: one to the Three Kings (like a letter to Santa) and one to their parents. They then asked a final question at the end of the experiment and got what some might consider to be a surprising answer. Check out the video here, and then read about what some researchers have said about the same issue (I don’t want to spoil the video with more detail, so click here to read the article after you’ve watched the video).

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Arranged marriage

Wedding ringsToday, the law of Utah says that marriage is an association of a man and a woman, or a man and another man, or a woman and another woman. Not, however, because a massive cultural change in the state led a majority of Utahns to decide that marriage should be a way for the government to endorse all types of adult relationships. Rather, because a year ago, a federal judge mandated a new legal definition of marriage, claiming the definition was required by the U.S. Constitution.

Because of that decision Utah is now under federal court order to issue marriage licenses to same-sex couples. The judge’s rationale for the novel result has not proven to be all that significant. Many other judges have come up with their own rationalizations, often contradicting one other. It’s hard to know whether the Utah decision influenced other courts, since the soaring rhetoric many of the judges relied on to announce their decisions suggests they were on board with the result regardless of what had happened in Utah.

One precedent was set a year ago in Utah that appears to have been more influential. In the wake of the decision, and even knowing the state would appeal to higher courts, the judge put the decision into immediate effect, a decision that would be reversed weeks later by the U.S. Supreme Court. The pattern of short-circuiting the appeals process was followed in many other federal court decisions, which is arguably a legacy of Utah’s experience, though not a very encouraging one.

In the nature of the court system, last year’s decision was appealed. A panel of judges on the U.S. Court of Appeals for the 10th Circuit ruled 2-1 that Utah’s law was unconstitutional under the theory that when U.S. Supreme Court cases had previously referred to a “right to marry,” they had not meant marriage as understood at the time but instead that everyone should be able to exercise a choice as to what they wanted marriage to mean. In October of this year, the Supreme Court declined to review this case (and others from other circuits), allowing the 10th Circuit decision to go into effect.

Going forward, however, the issue is not entirely settled even in Utah. In early November, a panel of the U.S. Court of Appeals for the Sixth Circuit ruled that the U.S. Constitution allowed states to decide to retain the understanding of marriage as the union of a husband and wife. This ruling, binding on Michigan, Ohio, Kentucky and Tennessee, directly contradicts the 10th Circuit’s opinion, and a number of states have now asked the U.S. Supreme Court to resolve the conflict. If the Supreme Court sides with the Sixth Circuit, Utah may be able to enforce its marriage laws again.

Whatever ultimately happens with the legal part of the debate, this turn of events presents an important cultural opportunity. Probably because the nature of marriage (as an institution bringing together men and women in which society is primarily interested because it promotes the opportunity of children to be raised by their own mother and father) had been so uncritically accepted for so long, the wisdom of that understanding may have been forgotten — particularly under the stress of other legal changes emphasizing adult expressive individualism in marriage and family.

The ongoing marriage debate allows the virtue of the embattled wisdom to be articulated in practice and in reason. That’s the opportunity we must seize going forward.

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Sutherland Institute supports Health Reform Task Force recommendations

Sutherland Institute today released the following statement regarding the legislative Health Reform Task Force’s actions regarding Medicaid expansion:

Sutherland Institute supports the decision of the Health Reform Task Force to recommend an approach to Medicaid expansion that focuses on the needs of the medically frail in Utah. Most importantly, the Task Force’s recommended approach addresses the human question by striking a prudent balance of meeting the most pressing health care needs of uninsured Utahns and protecting health care access for the disabled individuals, low-income single parents and children for whom Medicaid was designed.

Additionally, the Task Force’s recommended approach answers the human question in a fiscally reasonable and conservative way: making a significant investment of taxpayer dollars without relying on “promises” of federal funding that are mathematically unrealistic due to the federal debt situation. Given that other states which have adopted a full Medicaid expansion plan have faced unexpectedly high costs – requiring states to reallocate funds that would otherwise go to public schools, road and highways or criminal justice – taking a more cautious approach to Medicaid expansion is a reflection of wise fiscal stewardship.

Sutherland encourages policymakers to continue along the path the Task Force has recommended. We look forward to continuing to engage this decision-making process as it moves forward.

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